NO. PD-0061-15

___________________________________________________

IN THE COURT OF CRIMINAL APPEALS

___________________________________________________

CARLTON WOOD, Appellant

VS.

STATE OF TEXAS, Appellee

___________________________________________________

On Petition for Discretionary Review in Cause No. 04-14-00224-CR,

Fourth Court of Appeals and

On Appeal from Cause No. 2013 CR 3690

226 TH Judicial District Court

Bexar County, Texas

RESPONDENT’S BRIEF ON THE MERITS

FOLLOWING GRANTING OF THE STATE’S

PETITION FOR DISCRETIONARY REVIEW

DAVID L. MCLANE

9901 IH-10 West, Ste. 695

San Antonio, Texas 78230

(210) 736-9966

(210) 547-7932 fax

dlmclanelaw@yahoo.com

State Bar No. 00795517

ATTORNEY FOR

APPELLANT

1 PD-0061-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/5/2015 12:54:47 PM

Accepted 6/5/2015 1:45:39 PM

ABEL ACOSTA

CLERKIDENTITY OF PARTIES AND COUNSEL

In accordance with TEX. R. APP. P

. 38.1(a), and for purposes of

disqualification and/ or recusal of members of this Honorable Court, the

following is a list of those parties involved in the instant cause:

1. Hon. Sid Harle, Judge, 226th Judicial District Court

2. Carlton Wood, Defendant/ Appellant

3. Mr. Edward A. Bartolomei, Attorney for Defendant, SBN: 01852470

420 Baltimore Ave., San Antonio, Texas 78215

(210) 225-0393

4. Ms. Robbie L. Ward, Attorney for Defendant, SBN: 24033435

420 Baltimore Ave., San Antonio, Texas 78215

(210) 225-0393

5. David L. McLane, Attorney for Defendant/Appellant, SBN:

00795517

9901 IH 10 West, Ste. 695, San Antonio, Texas 78230

(210) 736-9966

6. Jay Brandon SBN: 02880500; Stacy Esterak, SBN: 24065743,

Nicolas “Nico” LaHood, Bexar County District Attorney, Attorney for

State of Texas/ Appellee

101 W. Nueva, Third Floor, San Antonio, Texas 78205

(210) 335-2311

7. Clayton Haden, Attorney for State of Texas/ Appellee, SBN:

24026918

101 W. Nueva, Third Floor, San Antonio, Texas 78205

(210) 335-2311

2TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 5

STATEMENT OF THE CASE 6

STATEMENT OF PRECEDURAL HISTORY 6

GROUNDS FOR REVIEW 7

GROUND FOR REVIEW ONE:

THE COURT OF APPEALS ERRED BY REFUSING

TO APPLY A PRESUMPTION THAT THE DEFENDANT

PLED TRUE TO THE ENHANCEMENT

RESPONSE TO GROUND FOR REVIEW ONE:

THE COURT OF APPEALS PROPERLY HELD THAT A PLEA OF

TRUE TO THE ENHANCEMENT PARAGRAPH MUST BE

AFFIRMATIVELY REFLECTED IN THE RECORD AND DECLINED

TO IMPOSE A PRESUMPTION OF REGULARITY UNDER TRAP

44.2(C) AND RELIEVE THE STATE OF THE BURDEN OF PROVING

THE ENHANCEMENT ALLEGATION BEYOND A REASONABLE

DOUBT.

GROUND FOR REVIEW TWO:

WHERE THE TRIAL COUR FINDS AN ENHANCEMENT TRUE AND

THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION

SHOULD BE APPLIED.

RESPONSE TO GROUND FOR REVIEW TWO:

THE COURT OF APPEALS CORRECTLY FOUND THAT THE

PRESUMPTION OF REGULARITY IN TRAP 44.2(C) APPLIES TO THE

PRESUMPTION THAT A PLEA WAS ENTERED UNLESS SUCH

MATTERS WERE MADE AN ISSUE IN THE COURT BELOW OR

OTHERWISE AFFIRMATIVELY APPEARS TO THE CONTRARY

FROM THE RECORD, AND THAT THE APPELLANT HAD NO

3BURDEN TO OBJECT. AND THAT THE STATE FAILED TO PROVE

THE ENHANCEMENT ALLEGATIONS BEYOND A REASONABLE

DOUBT OR EVEN PROVE PRIMA FACIE EVIDENCE OF SAME.

GROUND FOR REVIEW THREE:

THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE,

CONTRARY TO THE COURT OF APPEALS’ HOLDING

RESPONSE TO GROUND FOR REVIEW THREE:

THE STATE FAILED TO PROVE THE ENHANCEMENT

ALLEGATIONS BEYOND A REASONABLE DOUBT OR EVEN

PROVE PRIMA FACIE EVIDENCE OF SAME.

SUMMARY OF THE ARGUMENT 10

ARGUMENT 11

PRAYER FOR RELIEF 23

CERTIFICATE OF COMPLIANCE 24

CERTIFICATE OF SERVICE 24

APPENDIX ATTACHMENT

4INDEX OF AUTHORITIES

TEXAS CASES :

Breazeale v. State, 683 SW2d 446, 450-51 (Tex. Crim. App. 1984)... 18

Campbell v. State

, 49 SW3d 874, 878 (Tex. Crim. App. 2001)........ 15

Ex Parte Miller

, 330 SW3d 610, 624 (Tex. Crim. App. 2009)........ 20, 22

Fletcher v. State

, 214 SW3d 5, 9 (Tex. Crim. App. 2007) 13, 16, 17, 19, 22

Flowers v. State

, 220 SW3d 919, 921 (Tex. Crim. App. 2007).... 14, 16, 22

Henry v. State

, 331 SW3d 552, 555 (Tex. App.- Houston [14 th Dist.] 2011,

no pet.)........................................................................17, 18, 22

Hunt v State

, 994 SW2d 206 (Tex. Crim. App. 1999)..........................19

Jordan v State

, 256 SW3d 286, 292- 293 (Tex. Crim. App. 2008)......21, 22

Sharp v. State

, 707 SW2d 611 (Tex. Crim. App. 1986).......................19

Warren v. State

, 683 SW2d 414 (Tex. Crim. App. 1985).....................19

Wilson v. State

, 671 SW2d 524, 526 (Tex. Crim. App. 1984)......13, 14, 22

Wise v. State, 394 SW3d 594 (Tex. App.- Dallas 2014, no pet.)..12, 14, 17,

18, 22

Wood v. State 453, SW3d 488 (Tex. App.- San Antonio, 2014, pet. filed)..6,

16

TEXAS STATUTES:

Texas Rule of Appellate Procedured 44.2(c)(4)....................10, 11, 12, 21

Texas Code of Criminal Procedure Art. 36.01 ..................................12

Tex. Penal Code Ann. 2.01.........................................................12

Tex. Penal Code Ann. 12.42(a). ..................................................15

Tex. Penal Code Ann. 12.42(d)................................................16, 18

5STATEMENT OF THE CASE

Appellant Carlton Wood was charged with evading arrest/ vehicle.

The Appellant waived a jury, and tried the case to the bench on February 3,

2014. The indictment, which contained the enhancement paragraph, (CR-5)

was read at the beginning of the trial. Although the enhancement allegation

was not read, Appellant did not object, or raise the failure of the

enhancement paragraph being read as an issue on appeal. Carlton Wood

pleaded not guilty (RR p 3, ln 7-18) to the indictment. Afterward, a bench

trial was had and Appellant was found guilty. The Court held a punishment

hearing on March 26, 2014. At the beginning of the punishment hearing,

prior to any testimony being elicited, without Appellant entering a plea of

true, or any documentary proof being offered by the state, the court

announced that the enhancement count had been found true. A 5-minute

punishment hearing was held and the Court sentenced Appellant to four

years imprisonment.

STATEMENT OF PROCEDURAL HISTORY

On December 17, 2014, the Fourth Court of Appeals reversed the

judgment assessing punishment in this case and remanded the case to the

trial court for a new punishment hearing. The published opinion is by

6Justice Rebecca Martinez, joined by Justices Alvarez and Chapa. Wood v.

State 453, SW3d 488 (Tex. App.- San Antonio, 2014, pet. filed).

This Court granted the State’s petition for discretionary review oral

argument not permitted, on April 22, 2015. The State filed its brief on the

merits on May 7, 2015. This Response to the State’s Brief is timely filed.

GRANTED GROUNDS

GROUND FOR REVIEW ONE:

THE COURT OF APPEALS ERRED BY REFUSING

TO APPLY A PRESUMPTION THAT THE DEFENDANT

PLED TRUE TO THE ENHANCEMENT

RESPONSE TO GROUND FOR REVIEW ONE:

THE COURT OF APPEALS PROPERLY HELD THAT A PLEA OF

TRUE TO THE ENHANCEMENT PARAGRAPH MUST BE

AFFIRMATIVELY REFLECTED IN THE RECORD AND DECLINED

TO IMPOSE A PRESUMPTION OF REGULARITY UNDER TRAP

44.2(C) AND RELIEVE THE STATE OF THE BURDEN OF PROVING

THE ENHANCEMENT ALLEGATION BEYOND A REASONABLE

DOUBT.

GROUND FOR REVIEW TWO:

WHERE THE TRIAL COURT FINDS AN ENHANCEMENT TRUE AND

THE DEFENDANT DOES NOT OBJECT, THE PRESUMPTION

SHOULD BE APPLIED.

RESPONSE TO GROUND FOR REVIEW TWO:

THE COURT OF APPEALS CORRECTLY FOUND THAT THE

APPELLANT HAD NO BURDEN TO OBJECT TO THE COURT’S

FINDING OF TRUE TO THE ENHANCEMENT ALLEGATIONS.

GROUND FOR REVIEW THREE:

THE EVIDENCE SUPPORTED THE COURT’S FINDING OF TRUE,

CONTRARY TO THE COURT OF APPEALS’ HOLDING

7RESPONSE TO GROUND FOR REVIEW THREE:

THE STATE FAILED TO PROVE THE ENHANCEMENT

ALLEGATIONS BEYOND A REASONABLE DOUBT OR EVEN

PROVE PRIMA FACIE EVIDENCE OF SAME.

OBJECTIONS TO STATE’S BRIEF ON THE MERITS

Appellant objects to the State’s Brief on the grounds that the State

seeks to introduce evidence not contained in the record and have this Court

make its determination by considering such evidence. The State does so on

page 7 of its brief by stating “It is clear from the record that Appellant pled

true to the enhancement paragraph off the record,” and in referencing “a

presentence investigation report, which the court had reviewed (RR3 3), but

which is not in the record.” The state does so again on page 8 by stating

“The PSI report obviously contained information the Court read which is not

in the record.” The State does so again on page 11 stating “Defense counsel

apparently knew as well as the court did that Appellant had pled true off the

record.” The State does so again on page 12 stating “Clearly Appellant

knew he had pled true,” and that “the trial court obviously had evidence in

the presentence investigation report.” The state does so again on page 13

stating “Added to the information available to the court in the PSI report,

this sufficed to prove the prior conviction,” and that “he [Appellant] clearly

knew the conviction the State alleged.” The State does so again on page 15

8by stating “This case demonstrates the reasons for the presumption that

should have been applied. Events happen in court known to all the

participants that may not be obvious to appellate judges who weren’t

there...Appellant and his counsel knew he had plead to the enhancement

allegation.” Appellant objects to all the above statements as there is nothing

in the record which states this, supports this, or otherwise properly places

these contentions before this Court. The PSI was not admitted into evidence

and is not properly before this Court, is not contained in the record and

should not be considered. The State’s above statements amount to nothing

more than surmise and conjecture and speculation by an appellate attorney

who was not present at the sentencing hearing, and are in fact false

statements of the events that occurred at the sentencing hearing, which is

additionally objectionable as counsel testifying. Appellant moves to strike

all the above statements and references in the State’s Brief and moves for

this Court to completely disregard same as they are not contained in or part

of the record in this case.

SUMMARY OF THE ARGUMENT

The Fourth Court of appeals found that the State failed to prove even

a prima facie case in support of the enhancement allegations in the

indictment. The State seeks to have this Court impose the presumption

9found in Texas Rule of Appellate Procedure (TRAP) 44.2(c)(4) that

defendant has plead to an indictment, and to make the extraordinary leap that

said plea must be a plea of “True” to the enhancement allegation, when the

plea could have just as likely been a plea of “Not True,” especially in light

of the “Not Guilty” plea entered by Appellant to the indictment which

placed the burden directly upon the state to prove each allegation of the

indictment, including the enhancement paragraph, beyond a reasonable

doubt. The Court of Appeals correctly found that a plea of true to an

enhancement paragraph must be affirmatively reflected by evidence in the

record. This record contains no such evidence.

The State also contends that the Appellant had the burden of objecting

to the Trial Court’s finding the enhancement paragraph True. The Court of

Appeals correctly found that the Appellant in fact had no burden or

obligation to object to the Court’s finding of True.

Finally, the State argues that the Appellant did not suffer any harm by

the State’s failure to read the enhancement count. The State misses the mark

in this argument in that Appellant has not raised issue as to the State’s

failure to read the enhancement paragraph, but instead has raised the issue

that the State has failed to prove the enhancement paragraph beyond a

10reasonable doubt. Such a failure of proof is not subject to a harmless error

analysis.

ARGUMENT

The Court of Appeals properly held that a plea of True to the

enhancement paragraph must be affirmatively reflected in the record and

declined to impose a presumption of regularity under TRAP 44.2(c)(4) and

relieve the state of the burden of proving the enhancement allegation beyond

a reasonable doubt. The Court of Appeals correctly found that the appellant

had no burden to object to the Court’s finding of True to the enhancement

allegations. The state failed to prove the enhancement allegations beyond a

reasonable doubt or even prove prima facie evidence of same.

The State argues that this Court should apply the presumption found

in TRAP 44.2(c)(4) finding “Unless the following matters were disputed in

the trial court, or unless the record affirmatively shows the contrary

, the

court of appeals must presume...(4) that the Defendant pleaded to the

Indictment or other charging instrument” (emphasis added.) It is undisputed

that the Appellant, the Defendant in the underlying cause, plead “Not

Guilty” to the indictment. (RR p 3, ln 7-18). However, the State would

have the Court make the unsupported, mind-bending legal conclusion that

the plea so entered must be therefore be presumed to be a plea of “True” to

11the enhancement paragraph. The presumption in TRAP 44.2 (c)(4) is that

the Defendant pleaded to the Indictment. However, the plea could be a plea

of Not Guilty, Nolo Contendre, or Guilty and still comply with the

presumption of regularity of TRAP 44.2 (c)(4). Likewise, a plea of Not

True comports with the presumption of regularity as does a plea of True to

an enhancement allegation. However, when the enhancement allegation is

contained in the indictment, and the indictment is read at the beginning of

trial, as was done in this case, and the Defendant affirmatively pleas on the

record “not guilty,” the presumption of regularity is fulfilled and TRAP

44.2(c)(4) is satisfied by proof in the record. Once the Appellant entered his

plea of “not guilty” to the indictment, even though the State failed to read

the entire indictment, the State was put to task to prove the allegations

contained in the indictment beyond a reasonable doubt. See, Texas Code of

Criminal Procedure Art. 36.01 and Texas Penal Code 2.01. Additionally,

the Courts have declined to impose a presumption of regularity under TRAP

44.2(c)(4) and relieve the State of its burden of proving enhancement

allegations beyond a reasonable doubt. Wise v. State, 394 SW3d 594 (Tex.

App.- Dallas 2014, no pet.); Fletcher v. State

, 214 SW3d 5, 9 (Tex. Crim.

App. 2007).

12Additionally, the State complains that the Court should presume, and

therefore find, that Appellant pled true to the enhancement allegation

because Defendant failed to object to the court’s finding of true at

sentencing. However, the State ignores that it failed to provide prima facie

evidence of an enhancement conviction, as expressly stated by the Fourth

Court of Appeals. The State had both the burden and the opportunity to

present prima facie evidence of the Appellants prior conviction for

enhancement purposes, and it wholly failed to do so. Appellant’s plea of

“true” to an enhancement allegation must be affirmatively reflected by

evidence in the record. Wilson v. State

, 671 SW2d 524, 526 (Tex. Crim.

App. 1984); Wise

, 394 SW3d at 598. (The Court should note that Wilson

has been followed numerous times post the 1986 promulgation of the Texas

Rules of Appellate Procedure, thereby nullifying the State’s argument that

said promulgation overrules Wilson, sub silentio. ). No evidence in the

record reflects Appellant’s plea of “True” to the enhancement allegation.

The State clearly recognizes this as fact and thus resorts to attempts to direct

the Court’s attention to allegations of evidence outside the record, to which

Appellant re-urges his objection. See, Objections to State’s Brief, supra. As

noted in the Fourth Court’s opinion, the record does not affirmatively show

that Wood entered any plea at all to the enhancement allegation specifically,

13only that he pled “not guilty” to the indictment which contained the

enhancement allegation. In light of his plea of “not guilty” to the

indictment, which contains the enhancement paragraph, it legally follows,

and the court should interpret his plea as such, that Wood plead “not true” as

well to the enhancement paragraph. Without a plea of “true” in the record,

the Court must proceed with the analysis as to whether the state met its

burden of proof on the enhancement allegations. See, Wise

, 394 SW3d at

600. The State must prove two elements beyond a reasonable doubt: (1) the

existence of a prior conviction; and (2) the defendant’s link to that

conviction. Flowers v. State

, 220 SW3d 919, 921 (Tex. Crim. App. 2007).

A Defendant’s plea of True satisfies the State’s burden of proof. Wilson,

671 SW2d at 525. Absent a plea of True, the State must prove the two

elements by introducing evidence such as the defendant’s admission or

stipulation, documentary proof, e.g. a judgment, that contains sufficient

information showing the defendant’s identity as the person convicted of the

offense, or testimony by a person with knowledge of the defendant’s prior

conviction. Flowers, 220 SW3d at 921-22. In absence of a plea of “true” in

the record, appellate court proceeds as if defendant pled “not true” to

enhancement.

14Based on the record before the Court, the State wholly failed to

establish the September 23, 2002 prior conviction alleged in the

enhancement paragraph of the indictment. Wood’s vague testimony that he

had “one drug conviction” for which he went to prison “in the 2000s” is

insufficient, without more, to prove up the enhancement allegation in the

indictment which was alleged to have been a felony of Possession of

Controlled Substance Penalty Group 1, 1-4 grams, a third degree felony.

The evidence elicited by the State does not rise to proof beyond a reasonable

doubt that the drug offense was a third degree felony or higher. The

evidence elicited by the State could just as likely have proven a State Jail

Felony, or possibly even a misdemeanor, which would not be permitted to

enhance a third degree felony. See, Tex. Pen. C 12.42(a). Campbell v.

State

, 49 SW3d 874, 878 (Tex. Crim. App. 2001). The State contends in its

brief that defendant’s admission of “one drug conviction” is prima facie

proof of the offense alleged in the enhancement paragraph. On the contrary,

it does not prove beyond a reasonable doubt the offense alleged in the

enhancement paragraph because it fails to prove what type of drug

conviction, what penalty group to which the controlled substance he was

convicted belonged, whether it was a possession charge, manufacturing and

delivery charge, conspiracy charge, or any other drug related offense; or the

15amount of the controlled substance of which he was convicted, all of which

are essential elements of the enhancement allegation to be proven by the

State beyond a reasonable doubt in order to classify it as a misdemeanor,

state jail felony, or a felony for enhancement purposes under Tex. Penal

Code 12.42. Although given ample opportunity, and although the State

solely bore the burden of doing so, the State simply failed to meet its burden.

The State’s complaint that the “Fourth Court of Appeals, by contrast, wants

to require evidence of a document” is without merit whatsoever. The Fourth

Court of Appeals wants the State to carry its burden, in conformity with the

holding in Flowers. See

, Wood v. State, 453 SW3d 488, 491 (Tex. App.-

San Antonio 2014, pet. filed).

The state not only failed to prove the conviction to be used for

enhancement beyond a reasonable doubt, it failed to present even prima

facie evidence of the conviction. Therefore, contrary to the State’s

argument, no presumption of regularity attached to the judgment’s recitals

with respect to the enhancement conviction. Fletcher, 214 SW3d 5 at 8.

(presumption of regularity of a judgment with respect to a prior conviction

does not arise until after the State presents prima facie evidence of a

conviction to be used for enhancement.) When the State fails to make a

prima facie showing of an enhancement conviction, as it did in this case, the

16Defendant has no obligation to complain or object to any defect in the

judgment concerning the alleged prior conviction. Id. at 7. As in the similar

case, Wise

, the Court should not apply a presumption of regularity in the

enhancement proceedings in a way that relieves the State of its burden to

prove the enhancement allegations beyond a reasonable doubt. Wise, 394

SW3d at 599 (citing Fletcher

, 214 SW3d at 9).

Additionally, as in Wise, the State asserts the record is silent because

there is nothing in the record to indicate when Appellant’s plea to the

enhancement paragraph was taken by the Court (if it was taken by the Court

at all, which Appellant denies), and because a “silent record will not suffice

as an affirmative showing,” the State maintains the presumption of regularity

is not overcome. However, we do have a transcript of the punishment

hearing at which no plea to the enhancement paragraph was taken by the

court. Cf. Henry v. State

, 331 SW3d 552, 555 (Tex. App.- Houston [14 th

Dist.] 2011, no pet.) (only indication in record appellant pleaded ‘true” to

enhancement was recitals in court’s judgment, and because record contained

no evidence of plea to enhancement allegation, case analyzed as one in

which appellant pleaded “not true”).

The State argues that because the judgment in this case also recites

that Appellant pled true to the enhancement count, that it creates a similar

17presumption that the recital is accurate absent direct proof of its falsity and

cites Breazeale v. State, 683 SW2d 446, 450-51 (Tex. Crim. App. 1984).

However, this is in direct contradiction of the holding in Henry

, supra, and

is clearly distinguished by the holding in Wise, in that, unlike the State’s

burden here, to prove enhancement allegations beyond a reasonable doubt,

the State bears no burden at trial with respect to the execution of a

defendant’s jury-trial waiver, which was the subject of the holding in

Breazeale

. See Tex. Code Crim. Proc. Ann. Art. 1.13(a)

. Wise

, 394 SW3d at

599. If a jury trial waiver is not documented in the record, “nothing more is

implicated...than an alleged failure in the trial court to conform to statutory

prescriptions for showing a waiver of jury trial.” Breazeale

, 683 SW2d at

452. In contrast, enhancement allegations, if proved, operate to increase the

punishment range of a defendant. See, Tex. Penal Code Ann. 12.42(d)

. If

the State’s proof or a defendant’s plea of “true” is not somehow documented

in the record, the defendant’s punishment could be enhanced based on prior

convictions the State does not prove. The Court in Wise

, declined to apply a

presumption of regularity in the proceedings in a way that relieves the State

of its burden to prove the enhancement allegations beyond a reasonable

doubt, especially when, as in this case, the State had the opportunity to

18introduce such proof at the punishment hearing. See, Fletcher, 214 SW3d at

9.

Additionally, the State’s authority for the imposition of the

presumption of regularity are clearly distinguishable from the case at bar in

that the issues decided differed from the argument in this case, specifically

that the State failed to introduce sufficient evidence to prove the

enhancement allegations beyond a reasonable doubt. In support of its

position, the State cites Sharp v. State

, 707 SW2d 611 (Tex. Crim. App.

1986); Warren v. State

, 683 SW2d 414 (Tex. Crim. App. 1985); and Hunt v

State

, 994 SW2d 206 (Tex. Crim. App. 1999). In Sharp, a capital murder

case, the court held that the trial court did not commit reversible error by not

reading the indictment to the jury or taking his plea in the presence of the

jury

, because the presumption of regularity requires the defendant to raise

that issue at trial or in a motion for new trial. This case is clearly

distinguishable from the instant case. Appellant in this case does not make

the same complaint regarding the reading of the indictment.

Additionally, Warren is distinguishable in that it again raises the issue

as to whether the enhancement paragraph was read to the jury

, which is

not the issue in this case. Hunt is also distinguishable, in that it held that

although the indictment failed to state all of the elements for the firearm

19offense, defendant failed to preserve such error for appeal by timely and

proper objection since his motion was generalized and failed to specify

which offense was at issue. Moreover, the defect was not so great as to

deprive the trial court of jurisdiction to convict. Although the record was

incomplete, it was presumed, pursuant to Tex. R. App. P. 44.2(c)

, that the

indictment was read to the jury in its entirety, as required by Tex. Code

Crim. P. Ann. art. 36.01(a)(1)

. Again, the issue of whether the

enhancement allegation was read to the Appellant in this case is not the issue

presented on appeal, but rather that the State failed to present sufficient

prima facie evidence of the prior conviction for enhancement purposes

beyond a reasonable doubt. The authority cited by the State does not control

these issues.

At the time the Court found the enhancement allegation true, Woods

had not pleaded “true” to the allegation, and at no time did the parties

represent to the Court that he had. On this record, the Court must conclude

that the State failed to meet its burden, and Wood’s punishment was

enhanced based on a conviction the State did not prove. Such a failure of

proof is not subject to a harmless error analysis. Ex Parte Miller

, 330 SW3d

610, 624 (Tex. Crim. App. 2009); Jordan v State

, 256 SW3d 286, 292- 293

(Tex. Crim. App. 2008).

20CONCLUSION

As stated by the Fourth Court of Appeals, the State’s argument misses

the mark because Wood is not complaining that he failed to receive proper

notice of the prior conviction to be used for enhancement, or that it was not

read, or that he did not plea to it in open court, or that he was misled in any

way, but, rather, that the State failed to prove the prior conviction for

purposes of enhancement beyond a reasonable doubt. It is the State’s burden

to do so. The State attempts to subordinate its burden by urging the Court to

find through the presumption in TRAP 44.2(c)(4) that the defendant entered

a plea, and to further presume that the plea was a plea of True, which is not

provided for in the presumption of regularity provided by TRAP 44.2(c)(4).

Were the Court to do so, it would venture down a very slippery slope indeed,

wherein the State would be able to obtain and uphold enhancements, and

possibly convictions, without proof beyond a reasonable doubt, simply

because a clerk enters it on a judgment or a defendant does not object when

the State has not even provided prima facie evidence. It was not the intent

of the promulgators of TRAP 44.2(c)(4) that the presumption or regularity

would be able to supplant the State’s burden of proof. The State’s position

does not seek to resolve differences in the holdings of the appellate courts in

21this state affecting the Jurisprudence of this State. Instead, the State is trying

to have this court relieve them of their Burden of Proof, in contravention of

the uniform holdings of the appellate courts, and the Court of Criminal

Appeals, as held in Wise, Wilson, Henry, Fletcher, Ex Parte Miller, Jordan,

and Flowers

.

The State wholly failed to provide prima facie evidence of the

conviction to be used for enhancement. Therefore, contrary to the State’s

argument, no presumption of regularity attached to the judgment’s recitals

with respect to the enhancement conviction. Fletcher, 214 SW3d 5 at 8.

(presumption of regularity of a judgment with respect to a prior conviction

does not arise until after the State presents prima facie evidence of a

conviction to be used for enhancement.) When the State fails to make a

prima facie showing of an enhancement conviction, as it did in this case, the

Defendant has no obligation to complain or object to any defect in the

judgment concerning the alleged prior conviction. Id. at 7. As in the similar

case, Wise

, the Court should not apply a presumption of regularity in the

enhancement proceedings in a way that relieves the State of its burden to

prove the enhancement allegations beyond a reasonable doubt. Wise, 394

SW3d at 599 (citing Fletcher

, 214 SW3d at 9).

22PRAYER FOR RELIEF

The Appellant prays that this Court will uphold the judgment of the

Court of Appeals reversing the punishment judgment of the trial court and

remanding this case to the trial court for a new punishment hearing.

RESPECTFULLY SUBMITTED,

THE MCLANE LAW FIRM

9901 IH 10 West, Ste. 695

San Antonio, Texas 78230

Email: dlmclanelaw@yahoo.com

Telephone: (210) 736-9966

Facsimile: (210) 547-7932

By:_ /s/ David L. McLane

DAVID L. MCLANE

State Bar No.: 00795517

ATTORNEY FOR APPELLANT

CARLTON WOOD

23CERTIFICAT E OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4 (i)(3), the

undersigned counsel hereby certifies that the Response to State’s Brief on

the Merits Following Granting of Petition for Discretionary Review in the

above styled and numbered cause is in compliance with said rules and has

3434 words included as set forth in TRAP Rule 9.4(i)(1).

SIGNED this 5 th day of June, 2015.

/s/ David L. McLane

DAVID L. MCLANE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing

Appellant’s Brief was delivered in accordance with the Texas Code of

Criminal Procedure and Texas Rules of Appellate Procedure, on the 5th day

of June, 2015, on the following:

Bexar County District Attorney

300 Dolorosa

San Antonio, Texas 78205

State Prosecuting Attorney, Lisa McMinn

209 W. 14 th Street, Ste. 202

Austin, Texas 78701

/s/ David L. McLane

________ DAVID L. MCLANE

24